Supported decision-making: A rights-based disability concept and its implications for mental health law

Psychiatry, Psychology and Law

Volumn 20, Issue 3, 2013, Pages 431-451

  Gooding, Piers ^a  

^a MONASH UNIVERSITY   (Australia)

Author keywords

Capacity; Guardianship; Human rights; Mental health law; Supported decision making; United nations convention on the rights of persons with disabilities

Indexed keywords

EID: 84883284475     PISSN: 13218719     EISSN: None     Source Type: Journal    
DOI: 10.1080/13218719.2012.711683     Document Type: Article

References (120)

1. Convention on the Rights of Persons with Disabilities 2007 A/RES/61/106 Annex I; see also, United Nations Committee on the Convention on the Rights of Persons with Disabilities 'Chapter Six: From Provisions to Practice: Implementing the Convention, Legal Capacity and Supported Decision-Making' In UN Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities (United Nations 2007) http://www.un.org/disabilities/default.asp?id1/4242 accessed4 2 February 2012.
2. CRPD, s 12.
3. To summarise, the medical model of disability uses biomedical explanations which locate disability within the individual, in terms of pathology. By contrast, the social model underpinning the CRPD views disability as arising from the interaction between a person's impairment (physical or mental conditions which directly limit one's ability to enjoy a major life activity to a relatively normal degree) and the external physical and attitudinal barriers to his or her full and effective participation in society, on an equal basis with others. The distinction between impairment and disability is not always clear. The social context in which disability arises is always up for debate. Nonetheless, the social model of the CRPD was meant to provide an inclusive term which draws attention to external barriers to human flourishing rather than emphasising diagnostic categorisation, except so far as it is necessary to identify support requirements. Lord, Suozzi and Taylor touch on the tension between the medical and social model in relation to the CRPD, arguing that it will 'inevitably lead to some challenges, as well as opportunities, when considering the broader implications of the CRPD for global health governance.' J Lord, D Suozzi and A Taylor, 'Health; Human rights; International Law (Legislative Comment) Lessons from the Experience of U.N. Convention on the Rights of Persons with Disabilities: Addressing the Democratic Deficit in Global Health Governance' [2011] 38 Journal of Law, Medicine and Ethics 564.
4. CRPD, s (e). 5. CRPD, s 12(2)(3).
5. UN Committee on the Rights of Persons with Disabilities (n 1).
6. ibid 89.
7. UN General Assembly, OHCHR, Tenth session Agenda item 2, 'Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General: Thematic Study by the Office of the United Nations High Commissioner for Human Rights on Enhancing Awareness and Understanding of the Convention on the Rights of Persons with Disabilities' Distr. GENERAL A/HRC/10/48 26 January 2009. 9. CRPD, s 12(4).
8. The Vulnerable Persons Living with a Disability Act (Manitoba C.C.S.M. c. V90), s 6(1).
9. Supported Decision-Making and Adult Guardianship Act, Bill No. 5. [1997] (Prince Edward Island, Canada).
10. Representation Agreement Act (Revised Statutes of British Columbia 1996 c. 405).
11. Consent to Treatment and Health Care Directives Act (S.P.E.I. 1996. c. 10), s 4. Cited in R Gordon 'The Emergence of Assisted (Supported) Decision-Making in the Canadian Law of Adult Guardianship and Substitute Decision-Making' [2000] 23 International Journal of Law and Policy 61, 65.
12. UN Committee on the Rights of Persons with Disabilities 'Compliance Review: Tunisia', adopted 15 April 2011, CRPD/ C/TUN/CO/1: 22 5www2.ohchr.org/SPdocs/CRPD/6thsession/CRPD-C-ESPCO-1%20.doc4 accessed 02 February 2012 (emphasis added).
13. Minkowitz has argued that supported decision-making 'can be understood, from a user/survivor point of view, as an application of the recovery perspective to the situation of decision-making.' T Minkowitz, No-Force Advocacy by Users and Survivors of Psychiatry (Mental Health Commission New Zealand 2005) http://www.mhc.govt.nz/publications/no-force-advocacyusers-and-survivors-psychiatry4 accessed 17 January 2012.
14. UN Committee on the Rights of Persons with Disabilities (n 14) 22.
15. B McSherry (ed.), International Trends in Mental Health Laws (Federation Press 2008)
16. B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart Publishing 2010)
17. see also Mary Donnelly, Healthcare DecisionMaking and the Law: Autonomy, Capacity and the Limits of Liberalism (Cambridge University Press 2010).
18. A Lawson, 'The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?' [2007] 34 Syracuse Journal of International Law and Commerce 563, 597
19. Lord, Suozzi and Taylor (n 3)
20. A Dhanda, 'Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?' (2007) 34 Syracuse Journal of International Law and Commerce 429, 456
21. A Kampf, 'The Disabilities Convention and its Consequences for Mental Health Laws in Australia' (2008) 26(2) Law in Context 10
22. P Weller, 'Supported Decision-Making and the Achievement of Non-Discrimination: The Promise and Paradox of the Disabilities Convention' (2008) 26(2) Law in Context 85
23. N Devi, J Bickenbach and G Stucki, 'Moving Towards Substituted or Supported Decision-Making? Article 12 of the Convention on the Rights of Persons with Disabilities' [2011] 5 European Journal of Disability Rights 249.
24. Nicholson & Ors V Knaggs &Ors[2009] VSC 64 [69] (Australia)
25. Gray(Litigation Guardian of) v. Ontario
26. CarswellOnt [2006] 425 207 OAC 165, 264 DLR (4th) 717 (Canada).
27. Committee for the Elimination of All Forms of Discrimination Against Persons with Disabilities (First Special Meeting), Organisation of American States, 'General Observation of the Committee for the Elimination of All Forms of Discrimination Against Persons with Disabilities on the Need to Interpret Article I.2(b) in Fine of the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities in the Context of Article 12 of the United Nations Convention on the Rights of Persons with Disabilities,' OEA/ Ser.L/XXIV.3.1, CEDDIS/ doc.12(I-E/11) rev.1, 28 April 2011 (Original: Spanish), May 4 and 5, 2011.
28. See, for example, Victorian Law Reform Committee, 'Part 3: Supported Decision-Making' In The Guardianship Consultation Paper, March 2011 http://www.lawreform.vic.gov.au/home/currentthprojects/guardianship/lawreformth-thguardianshipth-thconsultationthpaper 4accessed 21 January 2012
29. M Bach and L Kerzner, 'A New Paradigm for Protecting Autonomy and the Right to Legal Capacity' Report to the Law Commission of Ontario 2010 9 http://www.lco-cdo.org/en/disabilitiescall-for-papers-bach-kerzner accessed 12 January 2011.
30. Centre for Disability Law, National University of Ireland Galway (Est. 2008) http://www.nuigalway.ie/cdlp/4 accessed 10 January 2012
31. Center for the Human Rights of Users and Survivors of Psychiatry, Independent (Est. 2009) http://www.chrusp.org accessed 16 February 2012; Centre for Advanced Law and Mental Health, Monash University (Est. 2011) 5http://www.law.monash.edu.au/centres/calmh/4 accessed 15 March 2012.
32. 'Grey literature' refers here to literature which is outside peer-reviewed academic journals and includes policy documents, professional guidelines, NGO-produced documents, and so on. See, for example, Inclusion Europe, 'Key Elements of a System for Supported Decision-Making: Position Paper of Inclusion Europe: Adopted at the General Assembly 2008' (Author 2008) http://www.inclusioneurope.org/documents/Position%20Supported%20Decision%20Making%20EN.pdf accessed 10 August 2010
33. B Carter, 'Supported Decision-Making: Background and Discussion Paper' [2009] Victorian Office of the Public Advocate 10 http://www.publicadvocate.vic.gov.au/file/file/Research/Discussion/2009/0909_Supported_Decision_Making.pdf accessed 10 August 2010
34. J Brayley, 'Supported Decision-Making in Australia: Presentation Notes' [2009] Presented to Victorian Office of the Public Advocate & Victorian Law Reform Commission 3 http://www.opa.sa.gov.au/documents/08_News_%26_Articles/Supported%20Decision%20Making.pdf accessed 18 October 2011
35. Canadian Association of Community Living 'Report of the C.A.C.L. Task Force on Alternatives to Guardianship' (Author 1992) http://www.worldenable.net/rights/adhoc3meet_guardianship.htm accessed 24 September 2010
36. NHS, 'Independence, Choice and Risk: A Guide to Best Practice in Supported Decision-Making' (UK Department of Health 2007)
37. NHS, 'Best Practice in Managing Risk: Principles and Evidence for Best Practice in the Assessment and Management of Risk to Self and Others in Mental Health Services' (UK Department of Health for Mental Health Services 2007).
38. See, for example, 'European Foundation Centre "Seminar on Legal Capacity" Consortium on Human Rights and Disability' Brussels 2009
39. 'International Conference on Good Policies for Disabled People' Vienna 2012 http://www.zeroproject.org/about/zero-project-conference/agenda/ accessed 21 January 2012
40. Centre for Advancement of Law and Mental Health, Research Workshop '2012: Exploring Legal Frameworks for Individuals with Multiple and Complex Needs' Prato 2012 http://www.law.monash.edu.au/centres/calmh/workshop.html accessed 21 January 2012.
41. UN Committee on the Rights of Persons with Disabilities (n 6)
42. Fifth Session of the Ad Hoc Committee Intervention of the Special Rapporteur on Article 9 'Legal Capacity' https://www.un.org/esa/socdev/enable/rapporteurart9.htm accessed 21 March 2012
43. UN Committee on the Rights of Persons with Disabilities, 'Call for Papers on the Practical and Theoretical Measures for the Implementation of Article 12 of the United Nations Convention on the Rights of Persons with Disabilities' Office of the High Commissioner of Human Rights http://www.ohchr.org/EN/HRBodies/CRPD/Pages/CRPDIndex.aspx accessed 21 March 2012.
44. UN Committee on the Rights of Persons with Disabilities (n 6).
45. Devi, Bickenbach and Stucki(n 19) 249.
46. See generally, A Buchanan and D Brock, Deciding for Others: The Ethics of Surrogate Decision-Making (Cambridge University Press 1989).
47. GS Stevenson, T Ryan and S Anderson, 'Principles, Patient Welfare and the Adults with Incapacity (Scotland) Act 2000' [2009] 32 International Journal of Law and Psychiatry 120.
48. Representation Agreement Act (Revised Statutes of British Columbia 1996 c. 405) s 5(1).
49. Beauchamp and Childress provide perhaps the most commonly used definition of competent decision-making, which they argue occurs where an individual has capacity to understand relevant information, can cast judgement on the information according to their values, envisage an outcome, and freely communicate her or his ultimate wishes. See TL Beauchamp and J Childress, Principles of Biomedical Ethics (4th edn, OUP 1994) 135.
50. T Minkowitz, 'Submission to the Committee on the Rights of Persons with Disabilities Day of General Discussion on CRPD Article 12' (Center for the Human Rights of Users and Survivors of Psychiatry 2009) 1.
51. Gordon (n 13).
52. For a discussion of these conceptual tensions, see G Quinn, 'Rethinking Personhood: New Directions in Legal Capacity Law and Policy' [2011] Keynote, University of British Columbia 5 http://www.arts.ubc.ca/fileadmin/user_upload/CIC/July_2011/Gerard_Quinn_s_Keynote_-_April_29__2011.pdf accessed 20 September 2011.
53. J Christman, 'Autonomy in Moral and Political Philosophy' The Stanford Encyclopaedia of Philosophy (Spring 2011 edn) EN Zalta (ed.) 3.3. http://plato.stanford.edu/archives/spr2011/entries/autonomy-moral/ accessed 12 February 2012.
54. Gordon (n 13) 64.
55. Treffert's words were used in the mental health context specifically. He argued that an excessive focus on civil and political rights without considering rights to treatment and protection can leave people more vulnerable. DA Treffert, 'Dying With Your Rights On' Paper presented at the 127th annual APA meeting 1974.
56. Brayley(n 24) accessed 10 October 2010.
57. Victorian Law Reform Commission, 'Guardianship: Final Report 24' (Author 2012): xxix http://www.lawreform.vic.gov.au/sites/default/files/Guardianship_FinalReport_Full%20text.pdf accessed 7 May 2012.
58. NHS, 'Independence, Choice and Risk'; NHS 'Best Practice In Managing Risk' (n 24).
59. NHS, 'Independence, Choice and Risk' (n 24) 5.
60. CRPD, s 12.
61. B McSherry, 'Legal Capacity under the Convention on the Rights of Persons with Disabilities' (Unpublished article) 2012.
62. Dhanda(n 19) 439.
63. UN Enable, 'Types of Declarations to the Convention and Optional Protocol' http://www.un.org/disabilities/default.asp?id1/42334 accessed 29 February 2012.
64. D Chartres and J Brayley, 'Office of the Public Advocate South Australia: Submission to the Productivity Commission Inquiry into Disability Care and Support' (Office of the Public Advocate 2010) 11.
65. Bachand Kerzner(n 22) 67.
66. T Minkowitz, 'Legal Capacity as Right, Principle and Paradigm: Submission to the Committee on the Rights of Persons with Disabilities in Response to its Call for Papers on Theoretical and Practical Implementation of Article 12' Prepared for the World Network of Users and Survivors of Psychiatry, June 17 2011 www.chrusp.org/biz//WNUSP_Article_12_Submission_Final.doc accessed 29 February 2012.
67. Legal Capacity Taskforce, International Disability Alliance, 'Legal Opinion on Article 12' (2008) IDA Position Papers and Statements http://www.internationaldisabilityalliance.org/sites/disalliance.epresentaciones.net/files/public/files/LegalOpinionLetterArt12FINAL.doc accessed 29 February 2011. The World Network of Users and Survivors of Psychiatry insisted during the negotiation process of the UN CRPD that the need for support should not conflate with denial of legal capacity. See Dhanda (n 19) 439.
68. L Salzman, 'Guardianship for Persons with Mental Illness A Legal and Appropriate Alternative?' [2011] 4 St. Louis University Journal of Health Law & Policy 279, 312
69. see also Bachand Kerzner (n 22) 17.
70. P Bartlett, "'The Necessity Must be Convincingly Shown to Exist": Standards for Compulsory Treatment for Mental Disorder Under the Mental Health Act 1983' [2011] 19 Medical Law Review 514, 541.
71. UN Committee on the Rights of Persons with Disabilities (n 14) 22.
72. Bach and Kerzner(n 22) 17.
73. G Richardson, 'Mental Disabilities and the Law: from Substitute to Supported Decision Making?' (forthcoming) Current Legal Problems 2012.
74. ibid 82-94.
75. B McSherry, 'The Right of Access to Mental Health Care: Voluntary Treatment and the Role of the Law' in McSherry and Weller (n 18) 379.
76. McSherry and Weller(n 18) 6.
77. See L O Gostin,'Perspectives on Mental Health Reforms' (1983) 10 Journal of Law and Society 47
78. L O Gostin,'The Ideology of Entitlement: The Application of Contemporary Legal Approaches to Psychiatry' In P Bean (ed), Mental Illness: Changes and Trends (Chicester, Wiley, 1983).
79. Quinn (n 36) 11 http://www.nuigalway.ie/cdlp/documents/publications/PANDITGQfinal.doc accessed 10 June 2012.
80. J Peay (ed.), Seminal Issues in Mental Health Law (Ashgate 2005) Xvii.
81. International Disability Alliance, 'Letter on Functional Capacity to the CRPD Committee' International Disability Alliance 2010 http://www.internationaldisabilityalliance.org/wp-content/uploads/2010/07/IDA-submission-on-functionalcapacity.doc accessed 2 July 2010.
82. P Weller, 'Supported Decision-Making and the Achievment of Non-Discrimination: The Promise and Paradox of the Disabilities Convention' In McSherry (n 18)85.
83. Quinn(n 62) 19.
84. This sentiment is echoed in a 2009 report by the Office of the High Commissioner of Human Rights. UN General Assembly, OHCHR (n 8).
85. T Minkowitz, 'The United Nations Convention on the Rights of Persons With Disabilities and The Right To Be Free From Non-Consensual Psychiatric Interventions' [2007] 34 Syracuse Journal of International Law and Commerce 405.
86. CRPD, Article 14, s 1(b).
87. See A Kampf, 'Involuntary Treatment Decisions: Using Negotiated Silence to Facilitate Change?' in McSherry and Weller (n 18).
88. See P Bartlett, 'The United Nations Convention on the Rights of Persons with Disabilities and the Future of Mental Health Law' [2009] 8 Psychiatry 496.
89. UN Enable (n 49).
90. T Carney, 'Guardianship, Citizenship, & Theorizing Substitute-Decision-Making Law' In I Doron and A Soden (eds.), Beyond Elder Law: New Directions in Law and Ageing (Springer 2012) 11 http://ssrn.com/abstract1/42041103 accessed 25 March 2012.
91. Brayley (n 40).
92. Quinn(n 36).
93. Gordon(n 35) 61, 68, 73.
94. Lord, Suozzi and Taylor (n 3) 577.
95. CRPD, s (o) (emphasis added). There are international examples where mental health policy makers and large-scale NGOs are hiring employees on the basis of lived experience as a mental health service user. See, for example, 'Mental Health Policy to be Run by Those Who Have Fought the Battle' SMH 24 November 2011 http://www.smh.com.au/national/health/mental-health-policy-to-berun-by-those-who-have-fought-the-battle-20111123-1nv3v.html#ixzz1lYUP75eo4 accessed 6 February 2012.
96. M Bach (presentation), 'Key Rights - Personhood The Right to Make Your Own Decisions and Have Them Respected by Others (Article 12 & Legal Capacity)' Centre for Disability Law and Policy, National University of Ireland, Galway, 19 June 2012.
97. Dhanda(n 19) 429.
98. Minkowitz (n 69) 405-409.
99. The Vulnerable Persons Living with a Disability Act (n 10).
100. Gordon(n 35) 61.
101. P Weller, 'Advance Directives and Human Rights' [2010] Journal of Psychiatry, Psychology and Law 218
102. P Weller, 'Supported Decision-Making and the Achievement of Non-Discrimination: The Promise and Paradox of the Disabilities Convention' In McSherry (n 18).
103. T Carney 'Australian Mental Health Tribunals-"Space" for Rights, Protection, Treatment and Governance?' [2012] 35 International Journal of Law and Psychiatry 1.
104. South Australia Office of the Public Advocate, 'Developing a Model of Practice for Supported Decision-Making: Background Information to Assist the Facilitation of Agreements' (2011) Office of the Public Advocate & Julia Farr MS McLeod Benevolent Fund http://www.opa.sa.gov.au/documents/09_Publications/Supported%20Decision%20Making/2-Supported%20Decision%20Making%20-Practice%20Manual%20%20v1.4%20June%202011.pdf.pdf accessed 15 February 2012.
105. ibid 5.
106. ChartresandBrayley(n 51) 12.
107. South Australia Office of the Public Advocate (n 90) 4.
108. UN Committee on the Rights of Persons with Disabilities (n 6).
109. Salzman(n 54) 279.
110. PO Skane website (English) 'Swedish User-Run Service with Personal Ombud (PO) for Psychiatric Patients' http://www.po-skane.org/ombudsman-for-psychiatric-patients-30.php accessed 16 February 2012.
111. See Center for the Human Rights of Users and Survivors of Psychiatry (independent), 'Good Practices' http://www.chrusp.org/home/good_practices accessed 2 January 2012.
112. See generally, Mental Health Peers (independent) 'Books, Articles and Videos' website http://www.mentalhealthpeers.com/booksarticles.html accessed 3 March 2012.
113. J Seikkula and M Olsen 'The Open Dialogue Approach to Acute Psychosis: Its Poetics and Micropolitics' [2003] 42 Family Processes 403.
114. J Seikkula, B Alakare, J Aaltonen, J Holma, A Rasinkangas and V Lehtinen 'Open Dialogue Approach: Treatment Principles and Preliminary Results of a Two-year Follow-up on First Episode Schizophrenia' [2003] 5(3) Ethics & Human Sciences & Services 163.
115. C Henderson, C Flood, M Leese, G Thornicroft, K Sutherby and G Szmukler 'Effect of Joint Crisis Plans on Use of Compulsory Treatment in Psychiatry: Single Blind Randomised Controlled Trial' [2004] 329 British Medical Journal, 136.
116. P Thomas and A Cahill, 'Compulsion and Psychiatry-The Role of AdvanceStatements: Liberation Cannot be Handed to the Oppressed by the Oppressor' [2004] 329 British Medical Journal 123.
117. T Minkowitz, 'Abolishing Mental Health Laws to Comply with CRPD' In McSherry and Weller (n 18) 151, 165.
118. G Davidson, B Kelly, G Macdonald, M Rizzo, L Lombard, O Abogunrin, V CliftMatthews and A Martin, M Evidence, 'Good Practice in Supported Decisionmaking under Modern Mental Capacity Legislation, A National Disability Authority Working Paper' (Belfast & London January 2012) 5.
119. Carney(n 74) 9.
120. See for a recent example, Centre for Disability Law and Policy 'Submission on Legal Capacity the Oireachtas Committee on Justice, Defence & Equality' (Centre for Disability Law & Policy, NUI Galway, 2012) http://www.nuigalway.ie/cdlp/documents/cdlp_submission_on_legal_capacity_the_oireachtas_committee_on_justice_defence_and_equality_pdf accessed 26 June 2012.